Roy-Kamtapersaud v. Canada ( Minister of Citizenship and Immigration )
IMM-7359-93
McKeown J.
19/5/95
6 pp.
Application for judicial review of Minister's determination insufficient humanitarian and compassionate grounds to accept application for permanent resident status from within Canada -- Issue whether increased duty of fairness required when assessing bona fides of marriage pursuant to Immigration Act, 114(2) application -- Applicant, subject to deportation order, marrying Canadian citizen and making request for exemption from Act, s. 114(2) requirement on basis of genuine marriage to husband-As s. 114(2) offering special and additional consideration for exemption from general requirements of law, and as rights of individual not in jeopardy, duty of fairness minimal -- Shah v. Minister of Employment and Immigration (1994), 170 N.R. 238 (F.C.A.) decision not imposing more stringent duty of fairness upon application for exemption based on applicant's marriage to Canadian citizen -- With respect to application from outside Canada, visa officer's discretion limited; with respect to application from within Canada, immigration officer's discretion broad -- Application of Immigration Regulations, 1978, s. 4(3) fettering immigration officer's discretion under Act, s. 114(2) -- Receipt of welfare not determinative factor when assessing bona fides of marriage but may be considered; actual amount of welfare money received extrinsic consideration -- Age not major or controlling factor in determination, but 18-year age difference between spouses, when coupled with short period between first meeting and marriage, relevant -- Immigration officer not relying on extrinsic or irrelevant evidence and not misapprehending evidence -- Application dismissed -- Question certified: whether duty of fairness pursuant to s. 114(2) visa exemption increased where application based on applicant's marriage to Canadian resident -- Immigration Act, R.S.C., 1985, c. I-2, s. 114(2) (as am. by S.C. 1992, c. 49, s. 102) -- Immigration Regulations, 1978, SOR/78-172, s. 4(3) (as am. by SOR/93-44, s. 4).